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The Kompilasi Hukum Islam and Debates on Shari’a ….
THE KOMPILASI HUKUM ISLAM AND DEBATES ON SHARI’A
Reconsidering Islamic Law in Indonesia
Mohamad Abdun Nasir
Pascasarjana IAIN Mataram
e-mail: [email protected]
Abstract
The discourses on the application of shari’a law through state enforcement have become
public concerns in Indonesia and constituted a controversial issue. The idea of the
application has been brought up by a number of Muslim politicians and Muslim groups
and organizations that consider shari’a the best solution for the multi-dimension of
socio-economic and political crisis upon the downfall of the New Order Regime in 1998.
They believe that shari’a enforcement not only fits the spirit of democracy, assuming that
the majority of population in the country is Muslims, but also offers a comprehensive
solution to the crisis. Unfortunately, this idea is not grounded on a comprehensive
apprehension to the nature of shari’a itself and pluralistic Indonesian society but more
on political impetus, namely a strong plea to realize an Islamic state that integrates the
state and religion and Islam and politics. By examining the Kompilasi Hukum Islam, as
one example of shari’a legislation in Indonesia, this article demonstrates the problems of
Islamic reform that most proponents of shari’a application have overlooked. It argues
that application of religious law by the state must consider the methodology of the law
and its impacts for broader society.
[]
Wacana tentang penerapan hukum Islam (syari’ah) melalui kekuasaan negara telah
menjadi perhatian publik di Indonesia dan menimbulkan isu-isu kontroversial. Ide
tentang penerapan itu telah dibawa oleh sejumlah politisi, kelompok, serta organisasi
yang menganggap syari’ah sebagai solusi terbaik atas krisis multi dimensi, sosial,
ekonomi, dan politik pasca jatuhnya rezim Orde Baru pada tahun 1998. Mereka percaya
bahwa penegakan hukum Islam tidak hanya cocok dengan semangat demokratisasi,
karena asumsi bahwa mayoritas penduduk di negara ini Muslim, namun juga menawarkan solusi yang komprehensif bagi krisis tersebut. Sayangnya, hal ini tidak
didasarkan pada pembacaan yang komprehensif terhadap sifat syari’ah itu sendiri dan
terhadap kondisi sosial masyarakat Indonesia yang majemuk, melainkan lebih pada
dorongan politik, yaitu dorongan yang kuat untuk mewujudkan sebuah negara Islam
yang mengintegrasikan negara dan agama serta Islam dan politik. Dengan menganalisis
Kompilasi Hukum Islam, sebagai salah satu contoh produk hukum Islam di Indonesia,
muncul argumentasi bahwa penerapan hukum agama oleh negara harus mempertimbangkan metodologi hukum dan dampaknya bagi masyarakat luas.
Keywords:
Kompilasi Hukum Islam, shari’a, changes, response, Islam-state relations,
Indonesia
Volume 22, Nomor 2, Oktober 2012 ║ 197
Mohamad Abdun Nasir
Introduction
Debates on shari’a remains an actual issue in Indonesia.1 This article is an
attempt to enrich such debates from the perspective that is based on critical
evaluation of the Kompilasi Hukum Islam. This paper aims to examine the Kompilasi
Hukum Islam (Compilation of Islamic Law) and puts it as a starting point to figure out
the problems of the enactment of shari’a law. The Compilation is a good example of
modern Muslim family law code to analyze the nature of shari’a and its changes
when integrated into state legal system. This examination also delineates the response that the Muslims evoke to this code. This code poses a crucial question about
the position of shari’a in the state legal system and its role for the development of
national law. My purpose here is to show the changes and ambiguity of shari’a law
when enacted by the state and the implication of this to Islam-state relations in
Indonesia and to remind that the application of shari’a law is not as simple as one
may presume. 2
The idea of the Compilation comes from the state through the establishment of a
joint committee between the Supreme Court and the Ministry of Religious Affairs in a
response to the demand of creating an independent judiciary and administration.
Unlike other courts, such as general court, military court and state-administrative
court,3 that have been able to run an independent administrative judiciary since the
issuance of the Statute Number 14/1970 about Judicial Authority, religious courts4
suffered from discriminations until at least 1989. Before the endorsement of the
Religious Judicature Act Number 7/1989, religious courts had a minor status
compared to other courts. For example, legal decisions meted out by religious courts
_______________
1On the debates over this issue see Syafi’i Ma’arif (ed.), Shari’at Islam Yes, Shari’at Islam No
(Jakarta: Paramadina, 2001).
2Muhammad Ismail Yusanto, “Shari’a and caliphate for a better Indonesia”, The Jakarta Post, April
23, 2008. Yusanto is the spokesperson of Hizbut Tahrir Indonesia (HTI) that strongly advocates
shari’a.
3Four courts exist in Indonesia; General Court (Pengadilan Negeri, State Administrative Court
(Pengadilan Tata Usaha Negara), Military Court (Pengadilan Militer), and Religious Court (Pengadilan
Agama). General Court is a court with general jurisdiction in both civil and criminal court for all
people. The other three courts are ones that are concerned with special jurisdiction and adjudication
for state apparatus, military officials and Muslim personal and family law.
4The term “religious court” here is a literal translation from Indonesian term pengadilan agama.
This term can also be translated as shari’a court and Islamic court, since it is concerned with the
application of Muslim personal and family law such as marriage, inheritance and endowment.
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were not legally binding and had no coercive power until they were endorsed by
general courts, even though both held an equal position in the state judiciary system
under the supervision of the Supreme Court.5 Similarly, religious courts had different
jurisdictions and their authority fragmented in different provinces and regions.6 The
religious courts in Java, for instance, had a wider authority to adjudicate Muslim legal
disputes than the religious courts outside Java. Moreover, judges of religious courts
had no equal position as state judges because they were only appointed by the
Minister of Religion, in contrast to judges of other courts who were directly
appointed by the President.7
Upon the promulgation of the Religious Court Statute No. 7/1989, religious
courts gained a similar status with other courts and had unified jurisdiction across
the country regarding Muslim personal and family laws which cover marriage,
inheritance and endowment fields. However, one fundamental problem left
unresolved. This issue dealt with fragmented references used by judges, in which
this plurality of legal source can lead into uncertainty when people seek for justice
through religious courts, especially if they subscribe to different legal schools.
Therefore one way to resolve this problem is by issuing a codification of Islamic law
that will be uniformly applied in religious courts. Although codification does not
guarantee that there would be no discrepancies and dissenting opinions amongst
judges, the uniform law code reduce potential gaps amongst judges. It is on this
ground that the idea of the Compilation emerged, namely to fulfill a legal code
unification for religious courts. The joint committee had been working since 1985,
earlier even before the issuance of Religious Court Statute in 1989, but the draft of the
Compilation could not be passed except after independent judiciary of religious
courts was established. This technical matter was mixed with political constellation
during the courses of the late 1980s and the beginning of the 1990s.8 The project of
_______________
5Article 63 b (2) of Marriage Law No. 1/1974 states “every decision of a Religious Court shall be
confirmed by a General Court”.
6Government Regulation No. 45/1957 prescribed different names, authorities and jurisdictions of
Religious Courts in Java and outside Java Island
7Bahtiar Effendi, Islam and the State in Indonesia (Singapore: ISAS, 2003), p. 159.
8There was a political impetus behind the enactment of shari’a law which massively took place in
the end of the 1980s and the beginning of the 1990s. Both the Religious Judicature Act Number
7/1991 and the Compilation of Islamic Law by Presidential Instruction Number 1/1991 were issued
in those periods which were seen a turning point of the state in employing accommodative approach
to Islam in return to gain a political support from Muslims. See Effendi, Islam and the State, especially
chapter 6, p. 125-149.
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Mohamad Abdun Nasir
the Compilation thus took several years starting from 1985 until its endorsement in
1991 and run through various processes. It was finally endorsed through
Presidential Decree No. 1/1991.
The Procedural Enactment of the Kompilasi
At least four steps were taken by the committee before the draft of the
Compilation was finally endorsed.9 The first step was collecting data gained from
Islamic law books (kutub al-fiqh) which serve as the bulk of the Compilation. The
committee selected thirty eight books ranging from classical to contemporary legal
works and comprising of various schools. The majority of the books were derived
from the Shafi’ite school, such as al-Umm of al-Shāfi’i, Nihāya al-Muḥtaj of al-Ramlī
and Fatḥ al-Wahhāb by Zakariyya al-Anșārī. This decision to adopt books from the
Shafi’ite school was based on the fact that the majority of Indonesian Muslims
subscribe to this school. However, works from other Sunni schools were also
included. They are Ibn Qudama’s al-Mughnī and Ibn Taymiya’s Majmū’ Fatāwa Ibn
Taymiyya from the Hanbalite school, Malik’s Muwaţţta‘ and Zaynabi’s al-Muḥalla
from the Malikite school and al-Nizām’s al-Fatāwa al-Hindiyyah of the Hanafite
school.10 This composition of the various sources shows that the Compilation is
purported to be a unifying code that includes all Muslim Sunni legal schools. In
addition, it is also intended to cover contemporary Islamic legal thoughts by
inserting for example Sayyid Sabiq’s Fiqh al-Sunnah. This book has been translated
into Indonesian language and is widely used in the national curriculum of Islamic
law school at the State Islamic College (IAIN) throughout the country. The
committee also enriched the data by adding jurisprudential works gained from
sixteen books of law which can be classified under different genres: four books of
compiled legal decisions, three books of compiled fatwa, five books of jurisprudence from religious court and the last four law report books.11 After the data were
gathered, a number of scholars from seven IAIN were appointed and assigned the
responsibility to examine those legal sources and books.
_______________
9Imam Ahmad Mawardi, “The Political Backdrop of the Enactment of the Compilation of Islamic
Law in Indonesia”, in Arskal Salim and Azyumardi Azra (ed.), Shari’a and Politics in Modern Indonesia
(Singapore: Institute of Southeast Asian Studies, 2003), p. 128.
10On the complete list of the books see Mawardi, “The Political Backdrop”, p. 128-129.
11Ibid, p. 130.
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In addition to this scholarly endeavor, the committee also sought to interview a
large number of ‘ulamā’. One hundred and sixty sixes ‘ulamā’ participated in this
interview, some of which were representative from Muslim organizations and
others were individual figures from Islamic boarding schools (pesantren).12 This
process of enlargement of perspectives that encompassed Indonesian Muslim
religious scholars’ opinions resembles to the concept of ijmā’ or consensus, at least
at the national level, and proves that the Compilation necessitates a throughout
consideration from the whole representative of Muslim communities because it
would be enforced nationally. At this point, the Compilation is projected to be
responsive and accommodative by including the majority’s voices.
This preparation for the Compilation’s draft did not end here, but continued to
include to an effort to make international comparison. In order to gain a good
product of legal code, the committee carried out a comparative study abroad. They
visited Muslim countries that have already carried out a similar project of
codification, such as Morocco, Egypt and Turkey.13 It was however unclear why
the comparison was conducted with only those three countries. If the reason was
to examine the diversity of legal traditions in those countries —as Morocco is
deemed to follow Malik, Turkey follows Hanafi and the Shafi’ite school is dominant
in Egypt— then why they did not visit Saudi Arabia which follows the Hanbalite.
The last phase of composing the Compilation was a five-day workshop. The
meeting was designed to accomplish the whole processes of the preparation and to
finalize the draft. Attended by representative from every province that included the
heads of provincial Indonesian Ulama Council (MUI), heads of high religious court,
rectors of IAINs, deans of Islamic law schools, emissaries from Islamic organizations
and women’s organizations, the forum eventually completed a final draft. In June
1991, the draft was enacted through the Presidential Decree Number 1.14 This code
consists of three parts. Part one pertains to marriage (nikāḥ) which includes
nineteen chapters and 170 articles. Part two is concerned with inheritance (waris)
that contains six chapters and 44 articles and the last part deals with endowment
(waqf), covering 5 chapters and 15 articles. This code constitutes a unified
reference used by judges in religious courts to adjudicate legal disputes amongst
Muslims in personal and family legal matters.
_______________
12Ibid.
13Ibid.
14Ibid.
Volume 22, Nomor 2, Oktober 2012 ║ 201
Mohamad Abdun Nasir
Reforms Introduced by the Kompilasi and Muslim’s Responses
Although the Compilation was accomplished through several phases and
adopted various methods, some of which resemble to the methodology of Islamic
law (ușūl al-fiqh) such as ijmā’, mașlaḥa, sad al-dzarī’a and adat and present
Indonesian Muslim thoughts, its large dependency on classical jurists’ law books
has resulted in domination of classical legal thoughts in it. According to Hooker, one
of the salient features of the Compilation is “straight forward reproduction” of
classical fiqh into a modern codification in such a simple way that it can be easily
understood by judges with even a minimum knowledge of Islamic law.15 In his
view, this process rarely changes the substance of shari’a, but simply transforming
it into another form, from fragmented classical books to a uniform modern
compilation, and into another language, from Arabic into Indonesia. The only major
change that he found was concerned with administrative procedures such as
registration for marriage and divorce and in some provisions regarding inheritance
and endowment.16 For example, Chapter VXI about dissolution of a marriage
requires fulfillment of a set of papers which should be proposed to the court if such
a marriage is to be legally terminated.17 According to Hooker, although this rule
will not substantially affect the substance of shari’a, since a ţalāq in shari’a’s
conception remains valid once it is verbally uttered by the husband, this procedure
(submitting a written statement of repudiation) is a sort of state’s intervention that
influences ţalāq application without which shari’a will not be applied.18 So, if the
husband intends to repudiate his wife, he must submit reason and a written
request to a religious court. If accepted by the court, such a request is registered as
a proof of divorce.
Following his argument, I think, another example regarding marriage procedure can be advanced here. Chapter II on Principles of Marriage states that
“marriage done without the presence or not supervised by official is considered
invalid”.19 This provision has also been emphasized in the Marriage Law Number
_______________
15M.B. Hooker, “The State and Shari’a in Indonesia” in Arskal Salim and Azyumardi Azra (ed.),
Shari’a and Politics in Modern Indonesia (Singapore: Institute of Southeast Asian Studies, 2003), p. 44.
16Ibid.
17The Compilation, Article 129.
18M.B. Hooker, “The State and Shari’a in Indonesia”, p. 44.
19The Compilation, Article 6: (2).
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1/1974 which applies to all Indonesians, regardless of their religion. Article 2
(point 2) of Chapter I on Foundations of Marriage declares that “every marriage
shall be registered according to the regulations of the legislation in force”.20 These
rules demonstrate that the state only recognizes a registered marriage and accepts
a written request for a valid divorce, meaning that unregistered marriage and
unilateral divorce have no any legal consequence in the state’s view. Written proof
thus constitutes an additional administrative and substantial requirement for the
application of shari’a by the state. In this regard, shari’a enforcement becomes a
subject of intervention and limitation by the state, most of which relate to the
procedural and administrative requirements, and yet this supplementary
requirement does give tremendous impact in the society.
Hooker might be correct in his comments when he said that no fundamental
change of shari’a was introduced in the Compilation and its pure rules remain
applied in some ways, except in a small portion dealing with administrative
procedures. However, he should not overlook other dimensions which I think
clearly reveals the changing nature of shari’a from its classical to modern
conception that covers both administrative aspects and substantial provisions.
Moreover, the shifting paradigm from Middle Eastern to local views is also evident.
By this I do not mean a total substitution of shari’a as it is transmitted from Arab
jurists and then it switches into a purely Indonesian and local characters. Rather,
some local elements or national thoughts are visible in this Compilation, a point
that Hooker missed. I presume Hooker did not take into consideration the
methodology of the Compilation and missed an important point as to how such
methods considerably influence the nature and subject matter of shari’a law. I
mean with shari’a here is a historically Muslim jurists’ understanding and
interpretation to the normative sources of the Qur’an and the Hadith. In this
definition, shari’a is similar to fiqh, a product of jurist legal thoughts. By employing
those methods, such as ijmā’, adat, mașlaḥa and sad al-dzarī’a, the Compilation
produces different legal prescriptions and reformulates subject matter of law
which are in many ways distinctive from classical conceptions. Take for example
the articles on joint property.
In many regions, such as in Java, West Sumatera, Kalimantan, Sunda West Java,
and Bali, joint property has been accepted as unwritten law and the people
_______________
20Marriage Law Number 1/1974, Chapter One, Article 2: (2).
Volume 22, Nomor 2, Oktober 2012 ║ 203
Mohamad Abdun Nasir
acknowledge it as a living tradition. Because of its existence and acknowledgement
as the people’s crucial practice regarding the management of property, this practice
is accommodated into the Compilation. It is perhaps argued that since this matter is
an important issue within the household that involves Muslim spouse’s relation,
regulating it into Islamic legal code is necessary. 21 Chapter XIII comprising of
thirteen articles especially addresses this issue. Article 85, for example, states that
“The existence of joint property does not by any means reject the possibility of the
individual property for the husband or the wife”.22 It must be underlined that joint
property is different from personal property. The husband and the wife can still
have their own property and have an absolute supervision and utilization. The
concept of joint property does not deflect from acquiring personal property owned
by each party. As a living tradition which is not contrary to shari’a law, the
Compilation was willing to adopt it.23 This tradition is considered as good and valid
practice (adat șaḥīḥ) in terms of maintaining a balanced relation of the spouse,
since the husband and the wife has an equal responsibility and supervision to their
joint property, besides their own supervision to their own properties. By
incorporating the spouse’s collective ownership and control into their joint
property, then equal responsibility, shared right and obligation to that property
between the husband and the wife are hoped to be well preserved. This effort can
lead to a family harmony and boost gender equity in the Muslim family.
Having cited those examples, I would emphasize that the nature and the
subject matter of shari’a does change in some ways and much broader than what
might many assume, such as Hooker, when it is adopted by the state and enforced
through its legal system and mechanism. The encounter of shari’a with the context
of the Indonesian Muslim’s conditions has yielded reform and changes. It is true
that one salient feature of the changes pertains to administrations and procedures
of justice imposed to shari’a in religious court. Those changing provisions are
_______________
21Ratno Lukito, Islamic law and Adat Encounter: The Experience of Indonesian (Jakarta: Logos,
2001), p. 109. See also Mark E. Cammack and Michael Feener, “Joint Marital Property in Indonesian
Customary, Islamic and National Law”, in Peri Bearman, Wolfhart Heinrichs and Bernard G. Weiss
(ed.), The Law Applied: Contextualizing the Islamic Shari’a (London and New York: I.B. Tauris, 2008), p.
92-102.
22The Compilation, Article 85.
23Customary law is considered as valid source for Islamic law as long as it is not contrary to the
Qur’an and the Sunna. See Muhammad Hashim Kamali, Principles of Islamic Jurisprudence
(Cambridge: The Islamic Text Society, 1991), p. 283-296.
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different from, or unavailable in, shari’a classical formulations to which the
Compilation refers to. Several articles regarding joint property, marrying pregnant
women and the status of adopted children show that these provisions are
essentially new products of law echoing the spirits of reform and change coming
from below. The changes are a logical consequence from the changing context of
law, which arises from many various factors.
No less important than those substantial changes is the acceptance of the
Compilation by the Muslims. I need to include this issue to point out that the
application of shari’a by the state has sparked various responses from Muslims. The
response relates to divine character of shari’a which is inherent to its nature as many
Muslim often assume. By changing its status from divine and religious to man-made
and state law, and its brand from shari’a to the Compilation, shari’a is no longer
perceived as a sacred law and consequently forfeits its religious boundary. Once
shari’a is formally codified and transformed into state law as well as applied through
state apparatus and mechanism, its religious dimension, in many Muslims’ views,
significantly diminishes. This in turn leads to the ways in which the Compilation is
appreciated and accepted by Muslims. Besides, Muslims’ perceptions about the
Compilation is also shaped by the issue of human right and gender justice as well as
by the disagreement about the basic nature of shari’a, whether it is a guide for human
conducts or a regulation that should be applied through the state. To Muslims who
perceive shari’a as a guide for human behaviors, its application remains compliant.
Generally speaking, there are tree difference responses to the Compilation.
First, those who accept the Compilation and consider it as “an Indonesian fiqh” that
applies to Muslim subjects when they bring their legal disputes into religious court.
Amongst these groups are judges of religious courts, religious body of Indonesian
ulama (MUI) and those who involved in the project of this codification. To these
people, the Compilation is conceived of a compromise of high and local tradition of
various Islamic legal schools which does not exclude voices and aspirations from
the Indonesian perspective. They emphasize the need of reformulating shari’a
which is not only adaptive to the actual condition of the Muslim in this country, but
also essentially transformative in terms of substituting classical to modern
conception. This change accepts language issue as one important element of the
socialization of the code to the society and admits vernacular language so that the
Compilation is more accessible and readable by wider audiences. Not surprisingly,
the Compilation is even regarded a realization of the idea of “Indonesian mazhab”
that has been proposed by Muslim scholars who consider it necessary to integrate
Volume 22, Nomor 2, Oktober 2012 ║ 205
Mohamad Abdun Nasir
fiqh to the Indonesian context. Hasbi as-Shiddiqi, the first scholar to come up with
this idea,24 maintains that the books of fiqh that have been widely spread and used
in both modern and traditional Islamic institutions presumably reflect much on
legal practices and traditions of the Middle Eastern regions. The jurists might also
have been likely unaware that their works would be read by readers in subsequent
centuries from different cultural and geographical backgrounds as far as Southeast
Asia. Adoption of their works into different contexts should therefore entail critical
examination since scholarly works remain relative and limited in scope. The
product of legal thought is thus not merely perceived as a purely intellectual and
scholarly works, but also contains ideological assumption, cultural traits and gender
biases. By criticizing all these elements and accommodating local aspirations, the
Compilation is designed to be able to neutralize such tendencies and is reflective and
adaptive to its own context.
Second groups are those who are ambiguous to either partly accept or decline
the Compilation. On one hand, they never criticize the compilation as a concept of
legal code. On the other hand, if certain provisions in the Compilation do not match
to their legal interests, they simply abandon it. To these people, the Compilation,
unlike shari’a, cannot in no way attach to itself a religious brand. They perceive the
Compilation as a state law which is different from to the traditional or classical
shari’a. Consequently, disobeying the Compilation does not count as religious
deviation for it is no longer a God’s law. This meant that the religious dimension
remains empty in the Compilation for it cannot be transformed into such a positive,
man-made law. The religious and secular dichotomy in looking at the Compilation
has profoundly influenced the ways the Indonesian Muslims accept and apply it.
Many Muslims believe that the Compilation is concerned with the formal
application of shari’a as the state requires so, while essentially such a formality
does not alter the substance of shari’a. In other words, many still believe that the
“true essence” of shari’a is what is covered in those classical fiqh texts. This
stumbling block often leads to abandoning the Compilation. A wide disobedience to
this code commonly relates to the issues of marriage and the inheritance. It is not
uncommon that many Muslims consummate their marriage without heeding the
provisions of marriage laid down in both the Marriage Law and the Compilation.
They arrange their marriage secretly, without reporting it to the marriage registrar
_______________
24Hasby is a professor of Islamic law in the oldest Islamic law school of the state institute of Islamic
studies (IAIN) Yogyakarta. He has authored several books, including Fiqh Indonesia which promotes
his idea about the establishment of “Indonesian Madzhab” of Islamic law.
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office. In this practice, only main players such as the groom, the bride, the bride’s
guardian and two male witnesses, are present during the contract agreement,
while the officials from the office of state registration are not invited or informed.
The third response to the Compilation comes from liberal and feminist Muslims
who regard the Compilation as an uncritical legal codification to the issue of gender
justice. To them, the Compilation remains granting privileges to men over women in
such issues as marriage and inheritance. Since the compilation in their view still put
men superior over women, there is no fundamental reform regarding equal male and
female relation. This gender bias is a result from the adoption of fiqh books which
were mainly composed by male scholars. This statement does not imply that being
male will necessarily lead to bias, for many Muslim male scholars are also proponent
of gender justice and maintain this principle as a fundamental perspective in Muslim
legal reform. Therefore a new idea of reform for the Compilation was offered by this
group. They proposed a counter legal draft to the Compilation. According to Musdah
Mulia, a chairperson on this project, the draft was composed on the basis of the
Qur’anic values of equality and freedom, and these principles must become the spirit
for the re-formation to the regulations on marriage and family matters.25 The draft
which was completed in 2003 proposes several substantial reforms that promote
gender equity. For example, failure to register a marriage could be punished or
imprisoned. Some issues such as minimum age, polygamy, the roles and status of the
husband and wife, and the rights of the husband and the wife on divorce receive a
special attention since those are often claimed as a manifestation of gender biases.26
In fact, the state through the Ministry of Religious Affairs initially supported this
endeavor. However, due to a strong opposition from the conservative Muslims who
are afraid of tremendous liberal reform, the state withdrawn its support and as a
result this new draft has not been enacted.
What I want to underline from these various responses to the Compilation is that
there is no single opinion or unified perception to the Kompilasi amongst Indonesian
Muslims. On the one hand, they do support this code arguing that it is necessary to
have a codification as a uniform legal reference in religious courts. This “structural
view” is held mostly by state officials, religious judges, state-appointed ‘ulamā’ body,
_______________
25Siti Musdah Mulia with Mark E. Cammack, “Toward a Just Marriage Law: Empowering
Indonesian Women through A Counter Legal Draft to the Indonesian Compilation of Islamic Law”, in
R. Michael Feener and Mark E. Cammack (ed.), Islamic Law in Contemporary Indonesia: Ideas and
Constitutions (Cambridge: Harvard University Press, 2007), p. 128-129.
26Ibid., p. 135.
Volume 22, Nomor 2, Oktober 2012 ║ 207
Mohamad Abdun Nasir
and others who involved in composing the Compilation. On the other hand,
progressive Muslims accept the Compilation if the articles containing conservative
views and gender biases are amended. They even decline the idea of unification and
formalization of shari’a because they believe that it as a guide for moral conducts, not
a code. This “progressive reformist view” offers two options, either reforming the
Compilation on the basis of human right and gender equity, or constructing an
alternative thought about shari’a as a socio-cultural guide, rather than a formal state
codification. Another perspective reveals “an ambiguous view” that tends to accept
the Compilation provided that it is not contrary to the shari’a as the Muslims holding
this view understand it. Although this last perception does not represent the
majority, it counts as an influential perspective that might potentially disturb the
application of the Compilation. The heterogeneous views on and responses to the
Compilation must be taken into consideration by the Muslims who insist on the
application of shari’a that covers a wider field, not merely on private and family laws,
as what has been prevailed so far. The enactment of the Compilation also triggers a
crucial question about the state’s relation with religion and the rule of religious,
including shari’a, law in the non-religious state.
The State and Islam in Indonesia
From historical point of view, there are strong evidences that Indonesians
attempt to negotiate the tension between religious and nationalist ideology in
shaping the country. This struggle has resulted compromises that the state finally
takes its form in a republic, nor monarch, nor religious, yet religion remains powerful
in influencing the state’s policy and in the society. Surprisingly enough, Muslims have
been always active agents in promoting this view and opting for a republic form of
the state rather than religious. It is quite clear from the very beginning of
Independence in 1945 that the founding fathers agreed upon the form on which the
state would be based, which is non religious. Although eight out of the nine
committees of the preparation for the Independence were Muslims, they did not
force Islam to be accepted as a state ideology. Rather, they displayed their high
tolerance and remained accommodative to the minority who wished not to accept an
Islamic state. Had there been an Indonesian Islamic state,27 the minority would not
_______________
27The idea of Islamic state was in fact an invention of the fourteenth century, promoted by Ibn
Taymiyya (1328). See Mohammad Hashim Kamali, Shari’ah Law: An Introduction (Oxford: Oneworld,
2008), p. 7.
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have joined it. The willingness of the Muslim leaders to omit “the seven shari’a
words”, which declares the obligation to observe shari’a for Muslims, from the state
philosophy and the Constitution demonstrates that Islamic state was not a suitable
choice for the multi-cultural Indonesian society. These historical accounts suggest
that in almost every pivotal moment in defending the unity of the state, Muslim’s role
has been always decisive. This may also explain the reason why the majority Muslims
and a number of Muslim social religious organizations have not been interested in
the idea of Islamic state, for they fear that it would interrupt nation’s integrity.
Therefore, based on such normative and historical evidences about the relation
between state and religion and about the responses to the Compilation, as has been
explained in previous passage, proponents of shari’a law application must
seriously re-think it. Proposing the whole adoption of shari’a law appears to be
problematic for both normative and historical viewpoints and seems absurd since
the enforcement of shari’a in its limited part regarding personal and family laws is
itself also dilemmatic, as the experience of the Compilation reveals. 28 Nor a total
rejection to the transformation of shari’a into state legal system is a viable solution,
since Muslims are badly in need of it to regulate their family matters. In my view,
those perspectives can be compromised by proposing an alternative view that
accepts the Compilation on the ground of necessity for a unified legal code in
religious courts, without which there would be no certainty of administrative
justice and no unified sources or references to which judges should refer to. This
acceptance, however, must be based on a fundamental amendment and reform on
the basis of human right and gender equity. Any rules which do not reflect those
spirits must be omitted and substituted with provisions which reflect gender
equity and human right perspectives. The provisions which still grants special
privilege to men, restrict women choice and contain gender biases must therefore
be amended. By accepting the Compilation within this human right and gender
framework will help establish a Muslim legal tradition that is relevant to the most
contemporary aspirations.29 In addition, this view will not transgress beyond the
_______________
28MMI goes further by proposing a draft of what is “called as Shari’a criminal code”. They strive to
implement shari’a as a supreme rule in the country, for it is, in their mind, a complete legal system. See
Tim Lindsey and Jeremy Kingsley, “Talking Code: Legal Islamisation in Indonesia and the MMI Shari’a
Criminal Code”, in Peri Bearman, Wolfhart Heinrichs and Bernard G. Weiss (ed.), The Law Applied:
Contextualizing the Islamic Shari’a (London and New York: I.B. Tauris, 2008), p. 295-320..
29As many have already shown and criticized that of the problems of shari’a is its minimum
acknowledgement of women’s roles and its admittance of non-Muslim’s inferior status to their
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Mohamad Abdun Nasir
Constitution nor betray national legal tradition, which to some extent remains
accommodative to limited enforcement of various living religious law and
traditions of the people. Within this limited area, in personal and family matters,
religious laws can still play their roles.
The field of personal and family law belongs to a private matter which can be
exclusively governed by personal faith with the assistance of the state through
religious court, because it is the state that assumes power and authority. The laws
employed in this special terrain will only prevail to the followers of certain religion
and not to be enforced to the other people with different faith. It is in this
theoretical framework that the Compilation is understood in its relation to the
issue of the relation between the state and religion.
Conclusion
The examination on the Kompilasi Hukum Islam and the re-reading of current
debates on shari’a suggests that the application of shari’a law is not a simple issue.
If Muslims themselves are in no agreement about the Kompilasi Hukum Islam,
which represents shari’a concerning family law, how they could reach agreement
on shari’a as a total system of Islam. However, shari’a, understood as a total system
of Islamic law and doctrines, can still play role in this state-religion relational
framework by promoting its values such as humanism and justice. If we accept a
proposition that the shari’a purposes are to promote justice and uphold humanity,
then any law that advocates those spirits must be essentially “Islamic” whether or
not they are called shari’a law. By applying those principles as substantive shari’a,
then any legislation, whether in forms of state law, statue, regulation, regional
ordinance or presidential decree, for example, remain in the line with the shari’a
principles.
This perspective can be advanced as an alternative view for shari’a legal formal
application. A recent study about the constitutional reform in Indonesia, especially
after the Reform era in 1998, discloses that shari’a values regarding human right,
_______________
Muslim counterparts. See Asma Barlas, Believing Women in Islam: Unreading Patriarchal
Interpretation of the Qur’an (Austin: Texas University Press, 2002); Abdullahi Ahmed An-Na’im,
Toward an Islamic Reformation: Civil Liberties, Human Right, and International Law (New York:
Syracuse University Press, 1990), especially chapter seven; and Robert Spencer (ed.) The Myth of
Islamic Tolerance: How Islamic Law Treats Non-Muslim (Amherst: Prometheus Books, 2005).
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The Kompilasi Hukum Islam and Debates on Shari’a ….
rule of law and religion can be inserted into the amendment of the 1945
Constitution.30 Nothing in such amendment is contrary to shari’a basic principles.
This changing approach from “formal” to “substance” means that shari’a’s values
are more applicable than its legal provisions. This strategy will keep the statereligion relation harmonious and the unity of the Indonesian multi cultural society
is well preserved, while at the same time not neglecting the roles of Islam in guiding
the state and the society. [a]
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_______________
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Mohamad Abdun Nasir
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